Attorney general rejects Middleboro’s cussing bylaw

Wednesday

Oct 10, 2012 at 12:01 AMOct 10, 2012 at 10:18 AM

Residents will be asked to rescind their town meeting vote approving $20 fines for violating a public profanity bylaw after Attorney General Martha Coakley ruled the original 1968 bylaw is unconstitutional.

Alice C. Elwell

Residents will be asked to rescind their town meeting vote approving $20 fines for violating a public profanity bylaw after Attorney General Martha Coakley ruled the original 1968 bylaw is unconstitutional.

Town meeting in June approved an article that decriminalized seven bylaws adopted between 1927 and 2009. Included in Article 24 was a shift in the 1968 cussing bylaw from a criminal offense to a non-criminal offense, punishable by a $20 ticket.

“We will have to rescind that vote at the next town meeting,” Selectman Allin J. Frawley said Tuesday, adding the measure has not been enforced.

Article 24 also adopted the use of non-criminal tickets and fines for smoking pot in public and for shoveling snow into the street, both of which were approved by the AG on Tuesday.

In an eight-page decision, Coakley said the bylaws were not before her office for a ruling – just the method of enforcement. However, the AG said the 1968 public profanity bylaw and two other old bylaws violate the right to free speech and should be repealed or amended.

“We found this new enforcement measure to be generally consistent with state and federal law,” Emalie Gainey, spokeswoman for the attorney general, said Tuesday. “However, we have determined that some of the underlying bylaws passed more than 30 years ago no longer meet constitutional standards and those bylaws should be repealed by the town, and in the meantime, not actively enforced.”

The swearing bylaw change approved by town meeting in June drew international attention and stirred heated debated in the media and on talk shows across the country. A protest was held outside Town Hall in late June.

Matthew R. Segal of the Central Massachusetts Division of the ACLU had told The Enterprise that if the attorney general approved the cussing measure – and if tickets were handed out for swearing publicly in town – the ACLU would likely take up the cases and seek a dismissal on the grounds that the bylaw is unconstitutional.

Frawley said Tuesday the town never intended “to step on the Constitution.”

“Keep in mind, at one point this bylaw was considered constitutional, the interpretation of the law has changed,” he said after the AG’s ruling was issued. “We didn’t change the bylaw, we just decriminalized it.”

The two measures, besides the profanity bylaw, that Coakley said need to be repealed or amended are parts of two disorderly conduct bylaws, one from 1927 and one from 1972.

The new enforcement method for four remaining bylaws given the green light include a 2009 bylaw on the public use of marijuana; 1972 bylaw on obstructing a roadway with snow or ice; 1927 measure on the use of highways and streets; and a 1973 bylaw on the public consumption of alcoholic beverages. The AG approved adopting a “non-criminal” enforcement, by ticketing and fines.

In 2009, Middleboro adopted a bylaw that prohibited the public use of marijuana and implemented a $300 fine. In February of this year, the courts approved a citation form that Middleboro police officers can use to ticket anyone caught smoking marijuana in public.

But before police could issue the tickets, town meeting approval was needed, leading to the June vote.